Lack of transparency and accountability are problems which undermine Australia's democratic traditions - and they are endemic in the Council of Australian Governments (COAG). Last month COAG met again in Canberra, but very few of the Council's activities at that meeting will ever be revealed to the public.
Few Australians would have heard much about COAG - a council which includes the Prime Minister, State and Territory premiers and chief ministers and a local government representative. It is not directly accountable to the Australian people, yet has a profound influence on the way we are governed. Decisions by COAG set out the parameters for further action on particular policy issues by the federal, state and territory governments.
COAG - the latest in a number of similar bodies - has been in existence for over ten years and has proven to be a useful forum for coordinating approaches to important policy issues between governments. But it operates as a closed shop with only those who are members of this exclusive club knowing the detail of what goes on within meetings. There are no transcripts of meetings, papers considered in them are secret, COAG is not covered by freedom of information legislation, is not subject to full parliamentary scrutiny and the public only finds out about decisions via quaintly titled "communiqués".
Through this secretive process vital national policy issues like competition policy and human embryo research have been determined. It is the process by which a plan on water reform may be agreed.
Parliament has an important role to ensure that government is accountable and to debate the merits of government policy and legislation.
Although the Prime Minister and federal public servants are deeply involved in the work of COAG, assisting with preparation of key advisory papers to inform its decisions, these papers are not available for parliamentary scrutiny. Senators can seek information on all other work of public servants, but not when it involves COAG.
Public servants have a privileged position of influence over the outcomes of key national policy debates. Without transparency and avenues of accountability, the quality of their advice cannot be judged or challenged.
There is no doubt that the Australian Public Service (APS) provides high-quality advice and support. But there is also no doubt that because of its key yet unelected role, the APS should be accountable to the people through parliament, where public servants' work can be examined and tested particularly through the Senate estimates process. COAG subverts that accountability.
COAG also undermines the parliamentary political process. Premiers, chief ministers and the Prime Minister can commit to a policy position via COAG without reference to their parliaments.
It is simplistic to say that the decisions of COAG are made accountable when governments then move to pass appropriate legislation through their parliaments. University of New South Wales academic Dr Christopher Sheil points out that
… by spreading the risks in its decisions across all jurisdictions, COAG effectively answers to none … the parliamentary check is readily defeated. This is because COAG's laws are invariably designed to interlock around the country. The interlocking character of the laws that issue from COAG … means that if one parliament objects to one part of one piece of the law, it must successfully mobilise identical objections in the other eight parliaments, or vote the entire law down. In other words, for each parliament, the interlocking laws are presented as all or nothing propositions. In these circumstances, the great political weight of bipartisan national executive authority - which sits over and above all the jurisdictional walls - destroys any single parliament's opposition.
I witnessed this system in operation during last year's embryo research debate. COAG reached a decision in April last year based partly on a secret paper prepared by state and federal public servants. Senators were refused access to this paper through the Senate estimates process and the Senate committee which examined the embryo research bill was also refused access. There was therefore no opportunity to examine the advice and check it for accuracy or balance.
Although the discussion and reasons leading to the COAG decision on embryo research were kept from the public, the actual COAG decision was used very publicly by the federal government as a stick to help force the Government's agenda through parliament, allowing a wide range of destructive human embryo research. Countless times the Government argued against amendments because they did not fit its interpretation of the COAG decision. The decision by the non-accountable COAG was used to try to shut down debate on the legislation or any amendments. This was a very effective strategy and similar tactics have been, and no doubt will again be, used in state and territory parliaments when they debate complementary embryo research bills.
To resolve this undermining of our system of parliamentary democracy, COAG must make itself subject to the normal checks and balances of accountability. It must make its processes transparent, publish agendas and transcripts of meetings and engage rather than exclude the public in debates over the important issues it considers. It must be subject to freedom of information legislation and its papers must be available for parliamentary scrutiny. Finally, there must be a mechanism to pass the decision back to the parliaments without the current interlocking system, which tends to make parliamentary review almost irrelevant.
Secretive, dictatorial institutions do nothing to aid our democracy. But they do make it easier for lazy and arrogant governments to avoid accountability and public scrutiny in difficult and controversial policy areas.